By John Mayaki
My attention has been drawn to reports that some people are quite out of touch with the details of the Edo Election Petition Tribunal and that even those who are familiar with the proceedings are holding grouses with my competence, my reports, and myself.
To the latter bunch, that ilk holding grouses, I will let the matter rest. It will stretch a matter too thin to go back and forth on it repeatedly. Their opinions must be tolerated, for we live in a democratic and progressive society that favours this tolerance.
To the first set of people though, I will briefly highlight the main points of proceedings at the tribunal.
As it stands…
The parties to the suit: PDP, Ize-Iyamu, INEC, APC and Obaseki. All accepted that the Burden of Proof of irregularities during the election rests on the petitioner in accordance with the provisions of the 2010 Electoral Act (as amended).
The petitioners (PDP and Ize-Iyamu), in their suit before the Tribunal, challenged the results in 2423 polling units, out of a total of 2627, meaning they were satisfied with the results from the remaining 204 units. However, for want of evidence, they later abandoned many of those units, and stuck to only about 1200 units.
Contrary to expectations, the petitioners ended up calling witnesses in just 29 of those units.
Without prejudice to the self-contradictions in the accounts given by nearly all witnesses during cross-examination, conceding these 29 polling units to the petitioners would still not upturn Godwin Obaseki’s victory as 29 units represent 1.1% of the total 2627.
In trying to prove that the election fell short of the Electoral Act, the petitioners tried to use the voters’ register as evidence, with reference to the mode of ticking, which, according to section 138 (2) of the Act, is not evidence of noncompliance.
Section 138 says, “An act or omission, which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of election, but which is not contrary to the provisions of this Act shall not itself be a ground for questioning the election. Precedence was set when this section was invoked to dismiss Buhari’s petition against Obasanjo’s victory.
The petitioners’ allegation that overvoting was discovered from the ‘recount’ exercise is out of the context of the Electoral Act. While the Act makes it clear, in section 53 (2), that overvoting can only be established where the total number of votes cast exceeds the total number of voters registered in INEC’s voters’ register, the petitioners based their allegations of over voting on the difference between the total votes declared by INEC and that arrived at in the recount. This is a situation whereby the total figure declared by INEC did not exceed even the total accredited voters let alone the total registered voters.
By not involving forensic experts, it is difficult to tell exactly which party the toxic votes favoured. Contrary to the awareness created on the efficacy of forensic analysis in Edo State, especially since the historic 2007 Tribunal verdict, the petitioners avoided accompanying their allegation of overvoting with an application for the use of forensic analysis. That avoidance outlawed the recount exercise they claimed to have conducted.
The results of the recount were never tendered before the court by the petitioners for due admission as exhibits. Therefore, the alleged discrepancies remain mere allegations in the eyes of the law and the Tribunal, and therefore cannot form any basis for the tribunal’s decision.
On INEC’s decision not to call witnesses: According to INEC’s counsel, a defendant’s task in a suit is to counter the prima facie evidence provided by the petitioner. In this case, the petitioners’ witnesses’ accounts and the tendered polling units’ results, which should have stood as evidence, ended up discrediting the petitioners’ allegations. So it became a situation whereby INEC was being called upon to counter the evidence which already in its favour.
Citing the case of CPC vs INEC at the Supreme Court, Counsel to INEC, Mr. Onyebuchi Ikpeazu said, “The Supreme Court was categorical that where, in an election petition, there are allegations of non-compliance and irregularities among others, the petitioners must, prima facie, establish their case. Where they fail to, the respondents will not even be called upon to give any evidence and that is exactly where we are now”.
The Sanctity of one of the petitioners’ identity – Ize-Iyamu – questioned by Obaseki’s counsel. Pastor Osagie Ize-Iyamu, as revealed by INEC records, contested in the election, while Pastor Andrew Ize-Iyamu filed the suit before the Tribunal. The Law does not permit a person, who did not participate in an election, to file a suit challenging the outcome of that election.
Assuming, without conceding, that the judgement concerning the recount favoured the petitioners, a deduction of the difference from Obaseki’s figures still gives him an advantage of over 58,696 votes.